Excerpt:.....a particular individual as a person representing the association as we have in the case of a society registered under the societies registration act or under the co-operative societies act, so forth and so..........from enforcing the notification annexure 'd' against the petitioner, leaving it open to the state government to confirm the said notification and enforce it against the petitioner after giving opportunity of hearing him or his representative ?2. before i proceed to record my opinion on the above points, it would be proper to state a few facts giving rise to this petition.3. in exercise of its powers under section 43 (1) of the motor vehicles act, act no. 4 of 1939 (which for the sake of shortness will be hereinafter referred to as the 'act') the government of madhya pradesh published the following draft of the proposed directions regarding fixing of fares of sage carriages in the m. p. gazette dated 29-7-1975.'no. 7-10-75-a-2-11. the following draft of the directions which the.....

Judgment:

Lodha, J.

1. The following points have been referred to me on account of difference of opinion between the learned Chief Justice end Singh J., constituting the Division. Bench, which heard the case :--

(i) Whether the petitioner has locus standi to claim a writ ?

(ii) Whether on the facts and in the circumstances of the case respondents 1, 2 and 3 should be restrained from enforcing the notification Annexure 'D' against the petitioner, leaving it open to the State Government to confirm the said notification and enforce it against the petitioner after giving opportunity of hearing him or his representative ?

2. Before I proceed to record my opinion on the above points, it would be proper to state a few facts giving rise to this petition.

3. In exercise of its powers under Section 43 (1) of the Motor Vehicles Act, Act No. 4 of 1939 (which for the sake of shortness will be hereinafter referred to as the 'Act') the Government of Madhya Pradesh published the following draft of the proposed directions regarding fixing of fares of sage carriages in the M. P. Gazette dated 29-7-1975.

'No. 7-10-75-A-2-11. The following draft of the directions which the State Government in exercise of the powers conferred by Sub-section (1) of Section 43 of fee Motor Vehicles Act, 1939 (IV of 1939), and having regard to the provisions of Clauses a) to (d) of the said sub-section and in partial modification of the direction referred to in the notification No. 7-32-73-A-2-11, dated the 6th November 1973 issued in this respect proposes to issue to the State Transport Authority regarding the fixing of fares for stage carriages, is published as required by the proviso to he said sub-section for the information of all persons likely to be affected thereby and notice is hereby given that the said draft will be taken into consideration on the expiry of one month from the date of publication of this notice in the Madhya Pradesh Gazette :Any objection or suggestion which may be received by the Special Secretary to the Government, Madhya Pradesh, Home Department, Bhopal from any person with respect to the said draft before the expiry of the period specified above will be considered by the State Government.'

4. In response to the notice 'Chhatarpur District Transport Operator's Association' of which the petitioner is also a member submitted an objection on 25-8-1975 to the Special Secretary, Government of M. P. It was signed by Surendra Mohan Chaurasia as President of the Association and also by 24 other operators including the petitioner. It further appears that in continuation of the above objection the petitioner submitted another application dated 7-9-1975 to the Chief Minister, Government of M. P. asking for an opportunity to be heard before finally issuing the notification. A copy of this application was also sent to the Special Secretary (Home) Government of Madhya Pradesh.

5. The petitioner's grievance is that no authority was named by the Government of M. P. for deciding the objection nor was he given an opportunity of being board, but the Government issued the final notification on 18-9-1975. It was submitted that the notification has been issued in violation of the proviso to Section 43 (1) of the Act and is consequently void and liable to be quashed.

6. The petition was opposed by the Government of Madhya Pradesh inter alia on the ground that the petitioner has no locus standi to file the petition. The opposite party has also contended that the provisions of Section 43 (1) of the Act had been duly complied with and that in any view of the matter, the petitioner was not entitled to any relief in the circumstances of the present case. Singh, J. held that the draft of the proposed direction (reproduced above) did not specify any date for hearing of the representatives of the interests affected and that it also did not name the officer who was to hear the representatives of the interests affected. In this connection he further held that 'opportunity of being heard means opportunity of personal hearing which implies fixation of a date for hearing and authorisation of some officer under the rules of business to afford the hearing'. He went on to observe that the duty to fix a date for hearing cannot be taken to be properly discharged by intimating in the notice that the draft shall be considered on the expiry of one month from the date of publication of the notice. Thus, he came to the conclusion that 'notice (Annexure A) was not intended to give any opportunity of hearing'. The learned Chief Justice did not discuss this point and proceeded to decide the case on the assumption that the State Government did not give the 'representatives of the interests affected' an opportunity of being heard.

7. On the first point referred to me viz. whether the petitioner has locus standi to claim a writ, Singh, J. held that the petitioner had signed the objection, that he was a person affected and that, since, no opportunity of hearing had been afforded to the association on whose behalf the objection had been filed, he was competent to file the petition to challenge the final direction relating to the increase in fares. He also held that the increase in fares may adversely affect the volume of traffic and thereby lower the margin of his profit and even make his business uneconomical.

8. On the other hand, the learned Chief Justice observed that since the petitioner had not filed any representation or objection in his individual capacity and the association which filed the objection did not pursue it, nor approached this Court for issue of writ and further that since the petitioner had not filed this petition as a representative of the association, nor had asserted anywhere that he was appointed by the association as its representative, he has no locus standi to file the petition.

9. Mr. Pathak, learned counsel for the petitioner has submitted that the Ch-hatarpur District Transport Association on whose behalf the objection was filed before the State Government is an unregistered association, not being a legal entity, and, therefore, no relief could have been granted to it as an association under Article 226 of the Constitution, and, therefore, the association did not approach this Court by way of writ. It is urged by him that even though the objection was filed on behalf of the association, yet any individual operator, who is interested in and is affected by the increase in fares is entitled to maintain the petition. In support of his contention he has relied on Jagjit Singh v. State of Rajasthan, AIR 1968 Raj 24; Radha Shyam Datta v. Patna Municipal Corporation, AIR 1956 Pat 182; Bhanwarlal v. Rajasthan State, AIR 1953 Raj 180 and Government Press Employee's Assn. Bangalore v. Government of Mysore, AIR 1962 Mys 25.

10. I do not consider it necessary to examine the question whether the association could have filed the present petition as that question does not directly arise in the case. For the purposes of the present case, I have only to see whether the petitioner is competent to maintain the petition.

11. It may be pointed out that the right of hearing can be claimed only by the representatives of the interests affected. The petitioner has nowhere asserted that he was a representative of the interests affected. He has claimed an opportunity of being heard as an individual. A bare perusal of the language of the proviso to Section 43 (1) of the Act (extracted below) would show that an opportunity of being heard is to be given only to the 'representatives of the interests affected' and not to every individual affected.

'Provided that no such notification shall be issued unless a draft of the proposed directions is published in the Official Gazette specifying therein a date being not less than one month after such publication, on or after which the draft will be taken into consideration and any objection or suggestion which may be received has, in consultation with the State Transport Authority, been considered after giving the representatives of the interests affected an opportunity of being heard.'

In order to succeed, the petitioner has, therefore, to show that he was a representative of the interests affected and was not given an opportunity of being heard. A perusal of the petition, however, shows that no such ground has been taken. I am, therefore, of opinion that the petitioner has no locus standi to file this petition, inasmuch as no legal right of his has been infringed. Even the authority relied upon by the learned counsel for the petitioner in this connection viz. Jagjit Singh v. State of Rajasthan, AIR 1968 Raj 24 lays down that every individual operator is not entitled to get an opportunity of hearing under the proviso to Section 43 (1) of the Act. Consequently, I answer question No. 1 in the negative.

12. The second question requires examination of the case on merits. It has been alleged by the petitioner that the State Government failed to give any notice of hearing by fixing the date, tune and place and that the petitioner was never informed as to who was the officer authorized to give the hearing and, therefore, the State Government had no jurisdiction to issue the directions by notification 'Ex. D'. The petitioner nowhere says that he was 'the representative of the interests affected'. As already observed above, the petitioner as an individual was not entitled to be given an opportunity of being heard. It is not the petitioner's case that the President of the Association was the representative of the interests affected. No affidavit of the President has been submitted that he wanted to be heard, but was afforded no such opportunity. There is force in the contention raised by the learned Advocate General that if a body of persons affected by the proposed increase of fares wanted to be heard, the Government should have been apprised as to who was to act as their representative. The petitioner cannot claim the right to be heard in his individual capacity as the requirement of law ig that opportunity of hearing is to be granted only to the 'representatives of the interests affected'. In the case of an unregistered association like the Ghhatarpur District Transport Operators Association there is no statutory provision for recognizing a particular individual as a person representing the association as we have in the case of a society registered under the Societies Registration Act or under the Co-operative Societies Act, so forth and so on. Assuming that the person who had signed the representation as President of the Association was the representative of the association, then it is he who was entitled to be heard and he should have come forward with the grievance that he had not been afforded an opportunity of being heard. As stated above, there is no such assertion in the petition much less any proof in support of it I am, therefore, of opinion that the petitioner is not entitled to any relief.

13. There is yet another aspect of the matter which tilts the scales against the petitioner on point No. 2. Even Singh J. has come to the conclusion that the impugned notification cannot be struck down as a whole, but that it may be declared inoperative as against the petitioner only. A serious question then arises whether in the facts and circumstances of the case, such a limited relief should be granted. It is trite, as pointed out by the learned Chief Justice, that even where any irregularity is committed by the public authority, it is not incumbent on this Court to issue a writ under Article 226 of the Constitution, if the ends of justice require otherwise, and the Court shall issue a writ only in the interests of justice and equity and not merely for enforcing the technicalities of law. The Rajasthan case Bhanwarlal v. Rajasthan State, AIR 1953 Raj 180 relied upon by the petitioner is distinguishable on facts as it was a case of levy and collection of tax without authority of law in contravention of the provisions of Article 265 of the Constitution. Besides that, to declare the impugned notification inoperative as against the petitioner, would create an anomaly inasmuch as the notification would apply to all other operators who would charge increased fare from the passengers, but not the petitioner. In my opinion, the present is not a case where the notification should be struck down as against the petitioner only. I am, therefore, of the view that the petitioner is not entitled to any relief.

14. The writ petition is, therefore, dismisses, but without any order as to costs.

15. Let this case be now laid before the Division Bench which had heard it for proceeding according to law.

OPINION

16. In accordance with the opinion of the third Judge (Lodha, J.), this petition is dismissed. There shall be no order for costs.